UNITED STATES оf America v. Jesse Nathaniel PENN, Jr., Appellant
No. 16-3779
United States Court of Appeals, Third Circuit.
August 30, 2017
Moreover, because Ficca and Bloomsburg University‘s action in dismissing Borrell from the program was not disciplinary, she in fact received all the due process to which she was entitled. See, e.g., Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 85, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978).
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) July 10, 2017
Rebecca R. Haywood, Michael L. Ivory, Office of United States Attorney, 700 Grant Street, Suite 4000, Pittsburgh, PA 15219, Counsel for Appellee
Before: SMITH, Chief Judge, FUENTES, Circuit Judge, and STARK,* Chief District Judge
OPINION
SMITH, Chief Judge.
Jesse Nathaniel Penn, Jr., was convicted of being a felon in possession of a firearm in violation of
I.
A one-count indictment charged Jesse Nathaniel Penn, Jr., with being a felon in possession of a firearm in violation of
We consider only Penn‘s contention that he was deprived of his constitutional rights when the District Court excused a seated juror without making a finding that the juror was “unable to perform” his duties оr that there was a ground for disqualifying the juror.2
* Honorable Leonard P. Stark, Chief Judge of the United States District Court for the District of Delaware, sitting by designation.
Voir dire for Penn‘s trial commenced on Monday, August 24, 2015. The District Court asked the members of the venire a series of preliminary questions. Among the questions was whether there was “any legitimate justifiable hardship reason, personal, professional, business, medical condition or impairment, or otherwise why you could not serve as a juror for the duration of this short trial?” A92. Prospective Juror #207, a student at Clarion University, indicated that serving on the jury would be a hardship for him.
The next question was, “Defendant, Jesse Nathaniel Penn, Jr., is an African-American, as you can see. Do you have such strong personal feelings, either positive оr negative, regarding African-Americans which would affect your ability to be a fair and impartial juror in this case?” A93. No member of the venire responded affirmatively to that question.
Later, the District Court held individual voir dire in chambers. At that time, Prospective Juror #207 explained that he attended Clarion on a full-time basis and that the trial, which would last two to three days, would conflict with his schedulеd tonsillectomy on Wednesday, August 26. After the Court asked for a “medical excuse,” the prospective juror stated that he had been told his tonsils had to be removed and that the appointment had been scheduled for “two and a half or three weeks.” A111. In response, the Court asked him if he could contact the doctor‘s office when he left and “reschedule it for the next day or Friday.” Id. The prospective juror responded that rescheduling surgery would conflict with basketball preseason practice, which started the following week. He added, “Sometimes that‘s not easy to get surgery postponed.” Id. The District Court advised that it was not inclined to excuse the student from jury service because he did not “have any medical evidence” to show he had surgery scheduled and had not advised the jury operations office of his surgery. A112.
Further discussion revealed that the August 26 appointment was the earliest appointment the prospective juror could secure after getting sick with bronchitis for the fourth time in July, that he was a varsity basketball player on a basketball scholarship, that he would be unable to perform activities for two weeks after the surgery, and that mandatory practices began the “[n]ext week.” A112–13.
After the prospective juror left chambers, the District Judge said he had no objection to keeping him on the jury, adding, “I don‘t believe him ... because if he truly was having surgery on Wednesday, he would have notified the jury office that he is not available for a medical reason and his doctоr would send a note to that effect.” A114. The Court completed voir dire, after which the student was seated as the ninth juror. The jury was sworn in that afternoon and the Court gave the panel preliminary instructions. After the prosecution and the defense made their opening statements, the Court adjourned for the day.
Before reconvening, the District Court advised both prosecution and defense cоunsel about the note, the meeting with the student, and the call with the doctor‘s office. The District Judge indicated he had “rethought about it.” A162. Because there was “medical support” for the student‘s need to undergo a tonsillectomy and the scheduling of his surgery, the District Court asked counsel for their consent to excuse the student and replace him with an alternate.4 A163.
The proseсution consented to excusing the student. Moreover, one of the prosecutors asserted that he had watched the student the day before and saw that the student was “yawning, disinterested, and clearly did not want to be there.” A163–64. Defense counsel disagreed that the student looked disinterested.
The Court redirected counsel to the issue of whether the student would “be a conscientious juror that he has this now verified medical condition with a surgery scheduled and not being able to do it.” A164. Defense counsel argued that the surgery was not a “front burner” problem or a “distraction” because the doctor‘s office was willing to reschedule the surgery. A164–65. Moreover, defense counsel stated that the District Court had not “made any findings.” A165.
The Court told counsel “that [the student is] very reluctant about being here.” A165–66. The Court also noted that the student repeated that, in addition to missing his surgery, he would miss class and basketball. When defense counsel said nothing had changed since voir dire, the District Court responded, “Yes, it has. We now have evidence.” A167. The Court overruled defense counsel‘s objection, excused the student, and seated an alternate juror.
Defense counsel then put on the record that the student was African-American and that there was only one other African-American on the jury, a middle-aged woman. (From this, we infer that the alternate was not African-American.) The District Court responded, “[T]he fact that [the student] is an African-American has absolutely no bearing on the Court‘s decision to allow this young man to go forward with his surgery that‘s scheduled for tomorrow.” A168.
On appeal, Penn argues that substituting the alternate for the student deprived Penn of his constitutional rights to due process, fundamental fairness, equal protection, and an impartial jury.
II.
Penn‘s constitutional claims are subject to plenary review. See Gov‘t of V.I. v. Davis, 561 F.3d 159, 163 (3d Cir. 2009). We review the removal of a juror for an abuse of discretion. See United States v. Cameron, 464 F.2d 333, 335 (3d Cir. 1972).
III.
Penn‘s constitutional claims fail. Penn‘s equal protection claim, the only one of Penn‘s constitutional claims for which Penn cites any caselaw, is meritless. All of Penn‘s arguments are based on the District Court‘s alleged failure to comply with
A. Penn‘s Constitutional Claims Are Basеd on His Claim that Rule 24(c)(1) Was Violated
Penn argues that four constitutional rights were violated: equal protection, due process, fundamental fairness, and an impartial jury.
Most of his argument is undeveloped. Penn comes closest to developing an argument about his right to equal protection through his emphasis on the student‘s race and invocations of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See, e.g., Reply Br. 29 (“[O]nce the jury was chosen through a process of peremptory challenges, in a case involving an African-American defendant and replacement of an African-American juror, removal of the juror contrary to Rule 24 implicated Mr. Penn‘s constitutional rights [and] is reversible error and cannot be dismissed as harmless.“). But his argument is wrong on the merits.5
Penn seems to believe that, under Batson6 or some novel permutation thereof, he was entitled to maintain the racial composition of the jury as it was selected. Of course, there is no such right. See United States v. Mendoza, 510 F.3d 749, 754 (7th Cir. 2007) (“Mendoza is not entitled to any Hispanics on the jury, nor by implication is he entitled to any one individual juror.” (citation omitted) (citing Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975))).
Penn also failed to substantiate his claims that his rights to due process, fundamental fairness, or an impartial jury were infringed by thе substitution of the alternate juror. Because these arguments
However, we need not rule on waiver because Penn‘s constitutional arguments are all premised on the idea that the District Court abused its discretion under
B. The District Court Did Not Abuse Its Discretion when Replacing the Student
On appeal, Penn argues (1) that the District Court needed to make explicit findings on the record and (2) that those findings needed to show that it was essentially impossible for the student to continue service. These arguments fail because the District Court‘s reasoning was clear and because excusing a juror for the reasons that appear on this record does not constitute an abuse of discretion.
First, Penn‘s argument that the District Court “made no findings,” Penn Br. 48, is contradicted by the record. It is true that the District Court did not issue a written document labeled “Findings.” But
Second, before the District Court and on appeal, Penn suggests that the words “unable to perform” and “disqualified” in
Courts have not construed
- “a planned business trip,” Reese, 33 F.3d at 173;
- “sinus problems [that] were a distraction to the proceedings” even though “the juror in question was well enough to continue,” United States v. Puche, 350 F.3d 1137, 1152 (11th Cir. 2003) (describing United States v. Fajardo, 787 F.2d 1523 (11th Cir. 1986));
- when a juror “had a seriоus argument with her husband on the telephone the night before,” United States v. Brown, 571 F.2d 980, 984 (6th Cir. 1978);
- “the illness and hospitalization of [the juror‘s] 87-year old mother in New Mexico,” United States v. Dominguez, 615 F.2d 1093, 1094-96 (5th Cir. 1980); and
- when a juror-nurse‘s “patient suffered a heart attack,” Cameron, 464 F.2d at 335 (describing United States v. Houlihan, 332 F.2d 8 (2d Cir. 1964)).
See also United States v. De Oleo, 697 F.3d 338, 342 (6th Cir. 2012) (citing other cases).
Most notably, in a persuasive opinion, United States v. De Oleo, the United States Court of Appeals for the Sixth Circuit held that a district court did not abuse its discretion by replacing a juror-student who “did not want to miss the beginning of school.” De Oleo, 697 F.3d at 341-42. The Sixth Circuit explained that “it is not the conflict‘s objective seriousness but its impact on a particular juror that matters.” Id. at 342.
Here, as in De Oleo, the juror-student was concerned about missing classes. In Penn‘s case, the student‘s “objective seriousness” is higher than in De Oleo because
Penn argues that De Oleo cannot be compared to this case because, in De Oleo, “the student was promised by the judge she would not miss classes and was replaced, as promised, when the trial ran longer than expected.” Reply Br. 27. We fail to appreciate why that difference matters. We recognize thаt the circumstances in De Oleo were slightly different than here. In De Oleo, the defense failed to object when the district court added the student to the jury on the condition that that student would be excused if trial ran long. De Oleo, 697 F.3d at 342.
At all events, whether the circumstances here are exactly the same as those in De Oleo is not determinative. It should go without saying that decisions related to juror substitution are within the discretion of the trial court. See United States v. Thornton, 1 F.3d 149, 154 (3d Cir. 1993) (“In light of the district court‘s wide latitude in making the kind of credibility determinations underlying the removal of a juror, we conclude the rulings here were well within its discretion.“); see also De Oleo, 697 F.3d at 342 (“[D]istrict judges are in the best position to view a juror‘s demeanor and determine whether she [or he] is able to shoulder the obligations of jury service.“); Dominguez, 615 F.2d at 1095 (“It is settled law in this and other circuits that it is within the trial judge‘s sound discretion to remove а juror whenever the judge becomes convinced that the juror‘s abilities to perform his duties become impaired.“).
The District Court‘s decision here was clearly within its discretion.
IV.
The decision to substitute a juror was within the sound discretion of the District Court. Because the District Court acted well within its discretion in excusing the juror, we will affirm.
DELAWARE RIVERKEEPER NETWORK; Maya Van Rossum, the Delaware Riverkeeper, Petitioners v. SECRETARY OF the PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; Pennsylvania Department of Environmental Protection, Respondents
No. 17-1533
United States Court of Appeals, Third Circuit.
Argued July 13, 2017 (Filed: August 30, 2017)
Tennessee Gas Pipeline Co., Intervenor